Belgium

"Article 3 of the Convention. Right of trade union organizations to organize their activities and formulate their programmes. Malicious obstruction of traffic (section 406 of the Criminal Code). In its previous comments, the Committee noted that, according to the above-mentioned trade union organizations, the offence of malicious obstruction of traffic provided for in section 406 of the Criminal Code is detrimental to the exercise of the right to strike, while the Government observed that the section is not aimed at the exercise of this right, but rather at all instances where road barrages are erected with malicious intent, regardless of the underlying motive. In the two cases referred to by the Government (the Port of Antwerp case and the Cheratte viaduct case), the courts considered that the fact that an obstruction to traffic was organized to support trade union demands did not necessarily prevent the act of obstructing traffic from being qualified as malicious within the meaning of section 406 of the Criminal Code. In the Cheratte viaduct case, the Committee noted that on 19 October 2021, the Liège Court of Appeal upheld the verdict issued by the Criminal Court, maintaining the prison sentences, deeming that the defendants were guilty of deliberate obstruction of traffic and that the right to strike could not be used in defence. Noting that the FGTB envisaged appealing before the Court of Cassation against the decision of the Liège Court of Appeal of 19 October 2021, the Committee requested the Government to provide information on the application of section 406 and on the outcome of the appeal before the Court of Cassation. The Committee notes that, in a ruling dated 23 March 2022, the Court of Cassation dismissed the appeal against the ruling of the Liège Court of Appeal, confirming that the criminal penalty was not disproportionate in respect of freedom of expression and the right of peaceful assembly, as the right to strike could be exercised without undermining freedom of movement. The trade union organizations also point out that the Court of Cassation does not condemn the facts that: (i) the Court of Appeal did not examine the necessity of the criminal penalty, including with regard to passive participation in the blockages; and (ii) heavier penalties are imposed when the person concerned holds responsibilities in the trade union. Lastly, the Committee notes that the trade union leaders and activists convicted on 19 October 2021 by the Liège Court of Appeal lodged an application with the European Court of Human Rights on 23 July 2022. With regard to legislation, the Committee notes the information provided by the trade union organizations and the Government indicating that a draft reform of the Criminal Code is currently under discussion at the government level. As to section 406, they indicate that regarding the moral element, it is proposed to replace the word “maliciously” by the words “with intent to harm”. These words indicate that the offence should be committed with “the intention to do harm, to undermine the rights of society or individuals or to harm others”. Moreover, the draft sections are supplemented by a new provision establishing a clause for the protection of fundamental rights and freedoms. According to the Government, it was important to make explicit provision for the fact that people exercising their fundamental rights, such as the right to strike, freedom of assembly, freedom of association, and so forth, cannot be prosecuted on the basis of the traffic obstruction provisions. The trade union organizations and the Government nevertheless observe that the rights to which this clause refers are not absolute, and may be subject to restrictions, justified by the need to ensure respect for other competing fundamental rights. The Committee requests the Government to provide information on any developments concerning the ongoing reform of the Criminal Code, and in particular the amendment of section 406. _____________________________ Violations of the right to strike. Replacement of striking workers by students. The Committee notes the concerns raised by the FGTB, the CSC and the CGSLB regarding the possibility for employers to replace striking workers with students. The trade union organizations observe that, although they often support the enterprise’s workers in their struggle, students have no choice but to agree to enterprises’ requests to work during a staff strike, or risk not having their student contracts renewed. The Committee notes the Government’s indication that on 1 June 2023, the Federal Minister of Labour submitted a draft legislative text to the social partners in the National Labour Council (CNT) for their opinion, prohibiting the replacement of striking workers by workers on student contracts. Taking due note of this initiative, the Committee trusts that the Government, in collaboration with the social partners, will soon be able to announce an end to the practice of replacing striking workers with workers on student contracts, which constitutes a serious obstacle to the exercise of the right to strike. "